September 1, 2005
Honorable Janice K. Brewer
Secretary of State
State of Arizona
1700 West Washington Street, 7th Floor
Phoenix, AZ 85007-2888
Dear Secretary Brewer:
I am writing in further response to your April 5, 2005
correspondence to Steven G. Bradbury, Principal Deputy Assistant
Attorney General in the Office of Legal Counsel, requesting
a formal opinion from the Department of Justice on certain
issues relating to the Help America Vote Act of 2002 ("HAVA"),
42 U.S.C. 15301-15545. As you know, because the Office of
Legal Counsel is not authorized to provide legal advice to
persons outside the Executive Branch of the federal government,
your request was assigned to the Civil Rights Division. Although
we initially replied to you in a letter dated April 15, 2005,
we feel it necessary to clarify our earlier interpretation
in order to ensure an accurate representation of the Justice
Department's views.
At the outset, let me reiterate that, while the Department of Justice does on occasion offer
its general views on the manner in which it intends to enforce a particular statute or set of laws,
the Department states its formal positions with respect to the statutes it enforces only through
case-by-case litigation. HAVA vests the Attorney General with the responsibility of enforcing
Title III of HAVA, which imposes uniform and nondiscriminatory election technology and
administration requirements on the 55 States and Territories. The Attorney General, in turn, has
delegated those enforcement functions to the Civil Rights Division. In light of this authority, we
will attempt to answer the question posed in your letter to the extent we can, but we emphasize
that the opinions expressed here are not binding.
Your letter focused on the requirements of HAVA related to provisional ballots in
elections for Federal office. Specifically, you inquired whether it is permissible under HAVA for
a state to mandate that potential voters show identification at the polls prior to receiving a
provisional ballot. The short answer is that HAVA requires States to allow voters who meet
certain specified conditions the opportunity to cast a provisional ballot. States, however, are free
to prescribe their own rules for deciding whether to count those provisional ballots. Thus, if an
individual who casts a provisional ballot does not comply with a State's identification
requirement, the State is under no obligation to count the ballot. See Sandusky County
Democratic Party v. Blackwell, 387 F.3d 565, 576-78 (6th Cir. 2004); Florida Democratic Party
v. Hood, 342 F. Supp. 2d 1073, 1079-81 (N.D. Fla. 2004); Hawkins v. Blunt, No. 04-4177, slip
op. at 17 (W.D. Mo. Oct. 12, 2004).
HAVA Section 302(a), 42 U.S.C. 15482(a), sets forth the eligibility requirements and
mechanics for administering provisional ballots. In relevant part, this statute provides:
Provisional Voting Requirements --- If an individual declares that such
individual is a registered voter in the jurisdiction in which the individual desires to
vote and that the individual is eligible to vote in an election for Federal office, but
the name of the individual does not appear on the official list of eligible voters for
the polling place or an election official asserts that the individual is not eligible to
vote, such individual shall be permitted to cast a provisional ballot as follows:
(1) An election official at the polling place shall notify the individual that
the individual may cast a provisional ballot in that election.
(2) The individual shall be permitted to cast a provisional ballot at that
polling place upon the execution of a written affirmation by the individual
before an election official at the polling place stating that the individual is--
(A) a registered voter in the jurisdiction in which the individual
desires to vote; and
(B) eligible to vote in that election.
(3) An election official at the polling place shall transmit the ballot cast by
the individual or the voter information contained in the written affirmation
executed by the individual under paragraph (2) to an appropriate State or
local election official for prompt verification under paragraph (4).
(4) If the appropriate State or local election official to whom the ballot or
voter information is transmitted under paragraph (3) determines that the
individual is eligible under State law to vote, the individual's provisional
ballot shall be counted as a vote in that election in accordance with State
law.
* * *
Taken together, we construe these provisions of HAVA to require that individuals be
permitted to cast a provisional ballot if they present themselves to vote at a polling place in an
election for Federal office and either: (i) do not appear on the official list of eligible voters for
that polling place but claim to be registered, or (ii) have their eligibility challenged by an election
official, so long as they execute a written affirmation to the effect that they are registered and
eligible to vote in the jurisdiction in which they seek to cast their ballot. (1)
All that having been said, whether an individual is allowed to cast a provisional ballot
and whether that provisional ballot must be counted are two distinct questions. There is a federal
law requirement in HAVA that, in elections for Federal office, an individual who meets the
conditions set forth in Sections 302(a) or 303(b) must be offered, and allowed to cast, a
provisional ballot. However, HAVA further provides that the question of whether the person
casting a provisional ballot is actually eligible to vote, and whether the cast provisional ballot
should be counted, are to be determined by the appropriate state or local election official
pursuant to state law. Thus, if a State adopts a law providing that no voter, including a
provisional voter, is eligible to have his/her ballot counted unless proper identification is
presented to election officials on or after election day, the State is entirely free to do so. (2)
In addition to tracking the statutory text, the interpretation articulated herein fulfills the
purposes behind HAVA's provisional ballot requirements, i.e., ensuring that individuals are not
deprived of the opportunity to vote because of some administrative error or delay or overzealous
poll official, while at the same time respecting the traditional authority of the States to regulate
the administration of elections. Cf. Tashjian v. Republican Party of Conn.,
479 U.S. 208, 217 (1986) (States exercise "broad power to prescribe the 'Times, Places and Manner of holding
Elections for Senators and Representatives,' . . . which power is matched by state control over
the election process for state offices."); Roudebush v. Hartke,
405 U.S. 15, 24 (1972) (States may "provide a complete code for congressional elections, not only as to times and places, but in
relation to notices, registration, supervision of voting, protection of voters, prevention of fraud
and corrupt practices, counting of votes, duties of inspectors and canvassers, and making and
publication of election returns.").
We apologize for any confusion generated by our earlier response. We hope that this
letter clarifies our answer and is responsive to your questions. If you have any additional
concerns, please do not hesitate to contact us.
Sincerely,
Bradley J. Schlozman
Acting Assistant Attorney General
____________________________________
1. Incidentally, also included in this category of persons entitled to a provisional ballot are
individuals who present themselves to vote at a polling place in an election for Federal office
who are covered by, and have not met, the HAVA identification requirements on or before
election day. See HAVA Section 303(b), 42 U.S.C. 15483(b) (requiring presentation of
identification at the polls by certain individuals who registered to vote for the first time by mail).
2. On this point, we note that the Department of Justice recently pre-cleared Arizona's
election law amendments adopted by the State as part of Proposition 200, which mandate that
individuals seeking to vote must present certain specified forms of identification at the time they
cast their ballot. See Ariz. Rev. Stat. 16-579(A).
